By Sylvie Kauffmann  Le Monde 10/25/04 Translation from: Truthout

The shock of September 11 has put the pillars of the American system to the test. A few unremitting lawyers have taken more than two years to impose law on a reluctant power in Guantánamo.

    September 11, 2001, Tom Wilner was on a business flight from New York to Mexico. Once he arrived in Mexico, he spent the day in front of the television set with a group of Mexicans who were as appalled as he was, watching what had happened in his country, attacked for the first time on its own territory since Pearl Harbor in 1941.

    “I wanted to get back to the United States, but the airspace was closed,” he relates three years later. “So then I took a plane to Tijuana and crossed the border on foot to San Diego.” For the record, he also remembers with a smile: “I was really hungry; I bought a burrito in Tijuana…I was sick for a week.” A shadow passes over the gringo’s face: “What I remember best is this unanimous surge of sympathy for us, for Americans. I would never have thought that it would give way to such a demonstration of unilateralism from us.

    Tom Wilner is neither an inveterate leftist, nor a militant for righteous causes. A lawyer in the big American firm Shearman & Sterling, he’s made a name for himself in international business matters and oil litigation. He studied law at Yale, in John Kerry’s class – he has also rubbed elbows with George W. Bush. He voted for Ronald Reagan in his day and George W. Bush’s father. “Politically, I’m Independent,” he says. A golf club in a corner of his luxurious office overlooking Pennsylvania Avenue next to the J. Edgar Hoover Building, the FBI’s enormous tinted-window blockhouse, reveals the hobby of a worthy representative of official Washington.

    Beneath his welcoming exterior, however, Tom Wilner is an angry man. His anger can be summarized in one word: Guantánamo. Twelve of his clients are detained there, twelve Kuwaiti prisoners whose case he has succeeded in bringing before the Supreme Court. In a historic decision, the Court ruled against the Bush administration on June 28, deciding that the men detained in secret by the American Army at the Guantánamo Bay naval base in Cuba for three years have the right to be tried before American courts.

    However, since then, the lawyer rages, “we’re still in the same place. The government obstructs and I have still not been able to see my clients. In practice, the government is in the process of defying the Supreme Court.” Tom Wilner and his colleagues have asked to go to Guantánamo to confer with the detainees that they represent several times since the June 28 decision, but the authorities impose conditions: that the American military listen to the lawyers’ conversations with their clients for three of them, and for the nine others, that the lawyers hand over their notes and give the military an account of the outcome of their interviews.

    Tom Wilner does not entertain the idea of seeing his clients under these conditions for a moment, and has started back on the fighter’s obstacle course before the courts. “This country was founded on a series of principles,” he pleads. “The primacy of law is one of those principles. We’ve defended those principles around the world; sometimes we’ve failed, but we’ve defended them. Today, Guantánamo has become a symbol of weakness and hypocrisy.”

    Tom Wilner symbolizes a category of Americans who, revolted by the infringements on law and civil rights since September 11, believe that terrorism can be fought without leaving the framework of democracy’s rules and intend to prove it. Democrats or Republicans, they share a common, quasi visceral, and paradoxically, very American, attachment to law. At first, they felt very lonely.

    When Michael Ratner and his team of lawyers from the Center for Constitutional Rights (CCR) in New York decided in November 2001 to defend the people who would be covered by the new Presidential Military Decree Number 1, which introduced indefinite detention, they found only a handful of colleagues specialized in death penalty cases, “accustomed to defending the dregs of society”, who would work with them. “Even for us,” Michael Ratner emphasizes, “the decision was not simple: the Center generally defends people we agree with.”

    In the months following the September 11 attacks, fear was queen and propaganda effective. “Everything was done to give credence to the idea that all the people arrested were linked to 9/11,” the lawyer adds. “Remember: Rumsfeld – the Defense Secretary – said: ‘We’re putting the worst of the worst in Guantánamo!’ We felt very weak in terms of support.”

    Tom Wilner didn’t get involved until April 2002, when he received a call from a Kuwaiti colleague acting on behalf of the families of ten men from whom there had been no news since the invasion of Afghanistan in October 2001. The colleague asked him to help him find the men. “I activated all my Washington contacts, people I’d known for years in the Justice Department,” he relates. “Only to encounter the same response, ‘We can’t tell you anything.'”

    So the lawyer decided to go to Kuwait to investigate. While he was there, the American authorities announced that they were holding eight of those Kuwaitis at Guantánamo; the Red Cross (ICRC) added four more, and Tom Wilner found himself with twelve clients. Why did he agree to take them on? “I thought it was an important case, since, even during a war or a time of serious threat, certain fundamental principles must be defended. If you sacrifice one, you put them all in danger.”

    A few eminent colleagues, better versed in criminal law, refused, fearing to have their reputations tarnished by association with the “terrorists.” “One of them told me, ‘Me, I’m a patriot.'” Tom Wilner laughs: “Is that crazy or what?” May 1, 2002, he entered a request with the Federal Court in Washington, “not to demand their freedom, that would have been unreasonable,” but for them to have access to the legal system.

    The government immediately countered with a firm argument: these men were foreigners held outside of United States territory and consequently could not have access to American courts. “I found this argument extraordinary and odious,” coldly notes the lawyer, who, to his great surprise, found himself inundated with insulting emails, even from colleagues at the bar. He received over a hundred of them.

    The CCR lawyers also got a bunch, but they’re used to it. Michael Ratner remembered a television broadcast he participated in: “As soon as I appeared on the screen, insulting emails started to arrive on my Blackberry! Typical: ‘Win an expense-paid vacation to Guantánamo’…”

    Invitations to appear on television, were, however, rather unusual. Guantánamo was not, properly speaking, the media’s hottest topic. The lawyers tried in vain to attract journalists’ attention to the proceedings underway and, profoundly disappointed, got used to hearings where the press was conspicuous by its absence from court to appeals court in 2002 and 2003.

    January 11, 2002, in the solitude of his office on the fifth floor of a charmless building in the heart of the Federal capital, another jurist, this one employed by the state, followed his conscience. At the time the Bush administration opened the Detention camp at Guantánamo, William H. Taft IV, Legal Director for the State Department and a descendant of Republican President William H. Taft (1909-1913), was consulted by the Attorney General with regard to a draft memorandum intended for the White House: this “memo” argued that the Geneva Conventions did “not necessarily” apply to “enemy combatants” taken prisoner in the “war against terrorism.”

    Inexorably, point by point, William Taft refuted its arguments in a note to his colleague at the Department of Justice whom Le Monde learned about. “In preceding conflicts,” he emphasized, “the United States managed thousands of prisoners without disavowing its obligations under the Conventions. There is no doubt that we may do the same in the current instance. (…) Your position is, at this point, erroneous in its substance and untenable in practice. Your conclusions are as wrong as they are incomplete. Let’s talk.”
    The two men would barely speak: following the advice of White House legal adviser Alberto Gonzales, President Bush chose the approach of the Justice Department under the leadership of Attorney General John Ashcroft, and disavowed the State Department’s position defended by Colin Powell.

    The situation created by September 11, Mr. Gonzales considered, “requires a new approach with regard to our treatment of captured terrorists.” When the moment came a little later to adopt a position on the use of torture, William Taft would not even be consulted. “Given the position he took on prisoners’ status,” one senior official, who preferred to remain anonymous, explained, “his point of view about recourse to torture was predictable!” According to this source, the State Department’s legal director would stay out of the game for almost two and a half years.

    The atmosphere was to change radically in spring 2004. April 28, 2004, the Abu Ghraib scandal exploded with the quagmire in Iraq in the background. The shock of photos revealing the bad treatment to which American soldiers subjected Iraqi prisoners and the echoes they stirred up around the planet brought the media and Congress out of their lethargy.

    At the Pentagon, at the State Department, and even at the Department of Justice, the leakage of documents that had been confidential up to then grew, organized by officials worried about the excesses of the “global war on terror”, the latest catchphrase minted by the administration. Several “memos” justifying recourse to torture by virtue of heightened wartime presidential powers that had been written in 2002 and 2003 by colleagues of John Ashcroft and Donald Rumsfeld found their way to newspapers’ headlines.
    During this time, the nine Supreme Court justices, the same who had proclaimed George W. Bush president at the end of five weeks of electoral chaos in 2000, pronounced three decisions concerning the restrictions on civil rights since September 11, one of which bore on Guantánamo detainees’ rights to trial.

    “Equal justice under law” proclaims the motto engraved over the Court’s Doric columns, behind the Capital. Needless to say, the Court’s opinion was eagerly anticipated in the beginning of 2004. Historically, the United States’ Supreme Court has avoided defying the Executive in times of war or serious crisis. In 1943, the Court backed the internment of more than 100,000 Japanese-Americans. It waited until the mid 1950s to denounce the abuses under McCarthyism. However, this time, confided a source close to the Court, “a state of law was hanging on by the merest thread and the Justices were aware of it. They were determined to bring the conflict back into a strict framework of law.”

    In the case of Guantánamo, that meant putting an end to the no-law zone. June 28, the Supreme Court ruled that a state of war “is not a blank check to the president” and declared that the Guantánamo prisoners were entitled to trial in American courts. Tom Wilner, Michael Ratner and their colleagues won, as did the power of law.

    Abu Ghraib and the Supreme Court have reversed the dynamic. Hundreds of lawyers are now offering their services to defend Guantánamo detainees, gifts are flowing in to finance them, and the media is no longer silent on the subject. The last four or five months, William Taft IV’s department is again allowed to have its say with respect to the United States’ international obligations.

    People like Tom Wilner or Michael Ratner are, however, very wary of declaring victory: nothing has changed for the moment at Guantánamo, where special military tribunals have begun to convene in the greatest confusion; no high official has been sanctioned for the Abu Ghraib scandals: the great debate about torture has not taken place and the theme of civil rights has not been tackled in any of the Bush-Kerry debates.

    “A real pitched battle is presently taking place over the extent of executive power,” Michael Ratner believes. “Iraq has demonstrated the excesses of the war against terror and made people more skeptical. But John Kerry has not said that he would change everything. If he’s elected, we will have to clash with him, but at least he hasn’t said that he wants to change the nature of our law, of our country, and of our democracy. That makes me optimistic.”

    Translation: t r u t h o u t French language correspondent Leslie Thatcher.